How SC set ‘public interest’ test for ex-post facto environment clearances

The Supreme Court struck down the Central Government’s 2021 Office Memorandum, which permitted projects that had begun construction without prior Environmental Clearance to obtain retrospective or ex post facto approval. 

Ex-Post Facto Environmental Clearance

• Under the Environmental Impact Assessment Notification, 2006, specified projects must obtain prior Environmental Clearance before commencing construction or operations. 
• However, several projects began functioning without such approval. To address these violations, the Centre issued a March 2017 statutory notification, providing a one-time six-month amnesty for eligible projects to disclose violations and undergo environmental appraisal. 
• In contrast, the July 2021 Office Memorandum introduced a continuing Standard Operating Procedure for granting retrospective clearances to violation cases.

Key Supreme Court Ruling
2021 Office Memorandum Invalidated

• The Supreme Court held that the 2021 Office Memorandum lacked statutory authority and created a permanent mechanism for regularising environmental violations. 
• Since an executive instruction cannot override or modify delegated legislation, the Court declared the OM ultra vires the Environment (Protection) Act, 1986.

Limited Statutory Amnesty Permissible

• The Court clarified that ex-post facto clearances cannot be granted through executive orders. 
• However, the Central Government may introduce a narrowly tailored statutory scheme under Section 3 of the Environment (Protection) Act, 1986, provided it is justified by overriding public interest, applies to clearly defined categories of projects, and satisfies the principles of reasonableness and proportionality.

Prospective Application of the Judgment

• To prevent disruption to completed or ongoing projects, environmental clearances already granted under the 2021 mechanism will remain valid. 
• The judgment will operate prospectively, thereby prohibiting future blanket regularisation while preserving limited statutory relief in exceptional cases.

Administrative Order vs Statutory Notification

• An Office Memorandum (OM) is an executive instruction issued by a ministry and cannot amend delegated legislation or create an independently enforceable regulatory regime. 
• A statutory notification, however, is issued under authority granted by Parliament and has the force of law. The Court therefore stressed that environmental regulation must rest on statutory authority rather than administrative convenience.

Constitutional and Legal Framework

Provision/Principle	Relevance to the Judgment
Environment (Protection) Act, 1986 — Section 3	Empowers the Central Government to issue statutory measures for environmental protection and permits a narrowly framed amnesty only when supported by law and overriding public interest.
General Clauses Act, 1897 — Sections 20 and 21	Recognises the power to issue, amend or withdraw statutory notifications where such authority has been legally delegated.
Article 14 of the Constitution	A blanket and perpetual mechanism for regularising environmental violations may be arbitrary and violate the principle of equality before law.
Article 21 of the Constitution	The right to life includes the right to a clean and healthy environment; dilution of environmental safeguards may infringe this right.
Jan Vishwas Act, 2023	The Act decriminalised several environmental regulatory violations, reflecting a shift towards monetary penalties and compliance-based enforcement. However, decriminalisation does not authorise unrestricted retrospective Environmental Clearances or remove the requirement of prior environmental appraisal.

Projects Affected and Significance

Before the Supreme Court stayed the 2021 Office Memorandum in January 2024, over 100 projects had received ex-post facto environmental clearances and nearly 150 more had entered the appraisal process, including mines, airports, cement and steel plants, chemical units, hospitals and commercial buildings. The judgment prevents routine regularisation of environmental violations, reinforces the precautionary principle, clarifies the distinction between executive instructions and statutory rules, and permits future amnesty only when justified by compelling public interest and sustainable development considerations.